NAZARETH — The debate reverberating in the human rights community one year after Israel’s assault on the Gaza Strip is not about whether Israel committed war crimes during its attack last winter, but whether and how its political and military leaders can ever be brought to book.
The problems were highlighted this month when an arrest warrant was issued in Britain for Tzipi Livni, Israel’s foreign minister during the war, after it was mistakenly believed she was visiting.
The British government responded with anger and promised to change the law to ensure future restrictions on the use of “universal jurisdiction” powers that grant British courts the right to try suspected foreign war criminals.
Human rights experts mostly agree that Israel extensively violated the rules of war during its three-week operation, known as Cast Lead. The consensus was formed early on, as organisations such as Amnesty International and Human Rights Watch carried out investigations. Their findings were backed by testimonies from Israeli soldiers.
The organisations condemned Israel for using disproportionate force, deliberately targeting civilians, blocking access to medical services, using Palestinians as human shields, and employing controversial weapons, including white phosphorus and high-explosive shells, in civilian areas. Hamas, which rules Gaza, was also accused of war crimes, mostly for firing rockets into Israel.
The final blow to Israel was the appointment of a distinguished judge, Richard Goldstone, to head a United Nations fact-finding mission.
According to a current prosecutor at the International Criminal Court in The Hague, who wished not to be named, the significance of the Goldstone report, published in September, lies in its conclusion that Israel’s leaders “planned and predetermined the grave violations [of international law] and human rights abuses” long before the attack on Gaza.
Mr Goldstone pointed to a spate of reports in the Israeli media that the army and cabinet held detailed discussions six months before the operation about the objectives to be realised and the strategy to be used.
In particular, The Hague prosecutor added, Mr Goldstone had highlighted the Israeli army’s premeditated implementation of the “Dahiya doctrine”, developed three years earlier during its war in Lebanon. This strategy justified laying waste to large swathes of Gaza’s infrastructure, supposedly because it offered support to Hamas, despite inevitable civilian casualties.
Almost 1,400 Gazans were killed during the operation, the vast majority of them non-combatants, including more than 400 women and children. In addition, more than 20,000 homes, as well as schools, mosques, food stores, factories and businesses, were damaged or destroyed in the Gaza Strip.
The Goldstone report said it was “particularly worrying” that Israel “viewed disproportionate destruction and creating maximum disruption in the lives of many people [in Gaza] as a legitimate means to achieve not only military but also political goals”.
Israel’s justification for the assault – that it was in self-defence against Hamas rockets – has been rejected by many human rights experts.
A letter published last January in Britain’s Sunday Times newspaper by 30 leading international jurists called the attack a “war of aggression” – the “supreme international crime”, according to the principles laid down in 1950 by the Nuremberg tribunal into Nazi crimes.
Victor Kattan, an international law expert at the School of Oriental and African Studies in London, said Operation Cast Lead could be defined as self-defence only if it had been sanctioned either by the UN Security Council or by Article 51 of the UN Charter. Neither applied. The attack also failed the tests of proportionality and necessity, he said.
There are still major questions among human rights experts about whether Israelis can be brought to trial. The most probable avenues are through an ad hoc tribunal of the International Criminal Court (ICC), or trials in one of a number of mainly European countries such as Britain, where local courts have universal jurisdiction.
However, Mr Kattan said both the ICC and most countries with universal jurisdiction would be reluctant to pursue a trial against an ally of the United States, or allow a precedent that might later be used against them.
He said one opening for war crimes trials might be of Israelis with dual nationality, where they are also citizens of a state that had ratified the 1998 Rome Treaty, which established the international court. “They could be prosecuted by the ratifying state, and if that state failed to prosecute, then the ICC could take up the case.”
In September, the ICC’s chief prosecutor, Luis Moreno-Ocampo, told Newsweek, a US magazine, that he was considering investigating an Israeli lawyer, David Benjamin, who is also a South African citizen, after he gave an interview to the Bloomberg news agency admitting that his unit, the military advocate corps, had authorised “the targets that could be struck, war material – everything passed by us”. In particular, observers believe Mr Benajmin, a reserve soldier, may be liable to prosecution over his unit’s approval of the use of white phosphorus.
Israel’s political and defence establishments appear worried. Benjamin Netanyahu, the prime minister, has led a campaign of vilification of Mr Goldstone and refused to approve a public investigation into the army’s actions in Gaza, as Mr Goldstone has demanded.
Israel has set up a task force to deal with possible defences in war crimes trials, barred the local media from identifying senior officers, and approved aid packages for soldiers to fight arrest warrants.
The Israeli government has also sought to block funding, particularly from the European Union, for Israeli human rights groups that have been trying to bring war crimes to light.
Jonathan Cook is a writer and journalist based in Nazareth, Israel. His latest books are “Israel and the Clash of Civilisations: Iraq, Iran and the Plan to Remake the Middle East” (Pluto Press) and “Disappearing Palestine: Israel’s Experiments in Human Despair” (Zed Books). His website is www.jkcook.net.
More IOA articles by Jonathan Cook